Freedom To Speak, Part 2: Australia and Online

5 September 2017

Feature

Brendan Raymond
General Editor

Freedom To Speak, Part 2: Australia and Online

In Part 1, we had a look at the definition of free speech according to two United Nations instruments, and some common principles that give rise to exceptions for it. In this article, we’ll be looking in more detail at how this applies to a country — namely Australia — and then how everything changes once you jump online.

So, how does it all work in Australia, then? Are the principles mentioned in Part 1 what we follow, or not really? Well, it’s a bit complex.

There isn’t a specific law or provision stating that we have a right to freedom of speech. Instead, it’s more accurate to say that all speech is free unless there is a law restricting it. (If you want to look more in-depth at the laws pertaining to free speech in Australia, I suggest this article.)

(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

This is the “offence principle” from Part 1. And this is just federal law — there are separate laws at the state and territory level that vary, but are often more prescriptive.

However, what constitutes “offence”? How can something so subjective be defined, and can’t it be taken advantage of? Can people cry “wolf, wolf!”, when no harm or offence was meant or done? Quite possibly. It’s a sticky issue, and tricky to navigate with any clarity.

As you go from physical speech to talking about speech online, we suddenly go from jam-sticky to treacle- or pitch-sticky, because censorship becomes much easier. One definition of censorship from Merriam-Webster is: “The system or practice of examining writings or movies and taking out things considered offensive or immoral.”

However, this can apply across all media, or written content of any kind — physical or digital. The reasons for censorship can also vary widely. And again, the question arises; what constitutes offence?

When people think of Internet censorship, most think of China and its “Great Firewall”. However, most social media sites have strict guidelines governing what can and can’t be posted, and will delete posts that violate these guidelines as a form of non-governmental censorship.

But where is the line drawn?

Imagine you’re viewing the Facebook profile of a known racist. They have recently made three posts. The first is an opinion piece, talking about the “difference” between people of particular races or ethnicities. The second is a post demeaning and belittling people of a particular race, after this particular person’s experience at an event. The third is a post organising a rally to go through an area where a foreign ethnicity is concentrated, which is designed to scare and potentially cause personal injury and property damage. After seeing the third post, you would probably remove it and report it. But what if it was only the first two? What if it was only the first one?

There is, of course, a spectrum. We should not be removing everything we find uncomfortable or offensive, or every piece of speech with which we disagree — even if we are in the majority, or have sound and logical arguments backing us up. There is a quote by Evelyn Beatrice Hall from 1906 that reads something like this:

I disapprove of what you say, but I will defend to the death your right to say it.

You may be familiar with the expression. These days, it seems that this is further and further from the truth. “We disapprove of what you say, so it may not be said.” This is particularly the case online, when the removal of comments, posts, and even websites only takes a few clicks.

It should be noted, however, that sites such as Facebook do at least leave some level of censoring up to the individual with people being able to filter much of what they see. Want to see less of this, or less from this person? You can do that, and perhaps it is more acceptable in principle than blanket censorship. After all, the right to freedom of speech does not require people to listen to what you have to say.

But it still seems that, more and more, our idea of “free speech” is being curtailed rather than upheld, with more exceptions being added, more “but”s put in place.

Some restrictions, perhaps, are needed, but let’s hope we aren’t headed towards a society where the police are more likely to come knocking after an expression of opinion that has no malicious intent, or where the only views we are willing to hear are our own.